The attribution of regional free movement rights is not a European phenomenon. Academia and political discourse, however, often frame EU policy as the masterpiece among a sparse variety of approaches which grant free movement rights to regional nationals. The oscillations of Brexit and wave of refugees into Europe over recent years have brought to the surface tensions and uncertainty surrounding movement rights in the EU, which Ursula von der Leyen and a newly composed Commission will be called upon to respond to in the near future. This blog post is a reorientation in our approach to free movement, stepping away from the euro-centric approach which often characterises academic and political discussion. The following contribution offers a comparison between free movement in the EU and Mercosur. South America is ill-explored in migration literature, though it represents a rich ground for comparison. This blog builds upon the work of Dr Diego Acosta in his recent publication The National versus the Foreigner in South America, and strives to map a series of “membership configurations” in the EU and Mercosur. These configurations help to identify the bases of movement rights for regional nationals, test the strength and accessibility of these rights and draw conclusions as to whether movement rights can be more concretely guaranteed, and liberally, indiscriminately attributed. Continue reading →
As for now, the United Kingdom will leave the European Union on 31 October 2019, unless a withdrawal agreement is ratified before this date. The UK aims to sign “continuity” agreements with third countries to replace existing agreements with the EU before Brexit to avoid disruptions in trade flows. With smaller market leverage and under political pressure to deliver results, there would be an incentive for the UK to adopt an approach that is more lenient than the EU’s in its negotiations of post-Brexit trade agreements. There have been reports of requests from non-EU trade partners for the UK to lower its human rights standards and to soften its food standards once it is out of the EU. However, there are indications that the UK will stick to a normative approach comparable to the EU’s when it comes to development cooperation and environmental standards, as can be seen in the UK’s first continuity agreement with a group of Eastern and Southern African States,. In this post, we argue that despite the pressures, the UK does not diverge from the normative approach that the EU takes in its post-Brexit trade agreements. Continue reading →
Brexit has been a personal matter for many British and European academics. In the last week, however, Brexit became even more personal for UK researchers based at the European University Institute in Florence. The UK government published its draft European University Institute (EU Exit) Regulations 2019 on 7th February. This is a Statutory Instrument promulgated under the executive power conferred by the ‘Henry VIII clause’ of section 8(1) of the European Union (Withdrawal) Act 2018. The manner in which the UK’s withdrawal from the Convention establishing a European University Institute has been communicated seems to vindicate concerns expressed during the reading of the Withdrawal Bill. Grievances were expressed that the provision of wide-ranging executive power would undermine the quality of decision-making. This seems to be borne out by the Regulations, which explicitly confirm no impact assessment has occurred. This post will consider the serious legal and political concerns regarding the withdrawal from the Convention. The Regulations may be predicated upon a misinterpretation of international treaty law. This seems to have arisen from the idiosyncratic way in which the Convention is treated in UK domestic law. The post will conclude with some reflections on the implications of such a retreat from European co-operations outside the auspices of the EU institutions. Continue reading →
In the domain of politics, trial and error are frequent occurrences. Through trial and error we tend to discover that political decisions, policy choices and even customary ways of doing things are no longer sustainable and thus in need of revision. There is nothing wrong in recognising mistakes or misjudgments and changing course. The doors of perception are not always fully open for human beings; information asymmetries, errors of judgement, ideological standpoints and self-interest often lead individuals to poor visualisations of the future and thus to imprudent actions. Continue reading →
Part II of the UK-EU Withdrawal Agreement provides extensive protection of the rights in the United Kingdom and the EU-27 that EU citizens currently derive from Article 21 TFEU. However, the Agreement is silent on the preservation of the rights to vote and stand as candidates in municipal and European Parliament elections that EU citizens derive from Article 22 TFEU. This ossifies a conception of EU citizenship as a status of passive ‘juridical objectity’ to the detriment of a conception of the status as one of political self-determination. This means that following the United Kingdom’s withdrawal from the European Union the voting rights of EU citizens within the United Kingdom and UK citizens within the EU-27 will revert to the discretion of the national legal orders. Therefore, I will argue in this piece that it would be more normatively desirable for the European Union’s legislature to adopt measures in order to preserve these electoral rights for UK citizens. The first section below will detail the arguments for why this would be acceptable, before the second section considers the legal methods by which this could be implemented. Continue reading →
Some have assumed that one of the consequences of Brexit is that EU citizens, who can currently vote in all elections in the UK except for those which choose MPs in the UK Parliament, will lose that right once, and if, the UK leaves the EU. In fact, Brexit will not automatically mean EU citizens in UK will lose the right to vote in elections for local government and the devolved legislatures. That is because the right of EU citizens to vote in local government elections is set out in the UK’s own domestic legislation. Therefore, all the rights of EU citizens to vote in other member states arises out of EU law, because that right is now contained with UK law, the fact that UK will no longer be a member of the EU does not change that provision giving EU citizens the right to vote in local elections. In that respect, they will join the citizens of many other countries who, although they have no right deriving from a treaty to vote in UK elections, nevertheless have such a right. For example Commonwealth citizens, if they have leave to enter or remain in the UK, or do not require such leave, can register, vote, and stand in all UK elections even though there may not be any reciprocal right for UK citizens to vote in elections in that Commonwealth country. Continue reading →
The UK is scheduled to leave the EU on 30th March 2019 at midnight, Brussels time, by automatic operation of EU law (Article 50(3) of the Treaty on European Union(TEU) and, indeed, according to section 20(1) of the UK’s EU (Withdrawal) Act 2018. Consequently, the UK will not be participating in the May 2019 European Parliamentary (EP), Elections. Its 73 MEPs, including the 3 MEPs representing Northern Ireland, will be gone. This post appraises, first, the ramifications of Brexit for electoral rights of EU-27 citizens resident anywhere in the UK as a ‘third country’ and, second, the unique electoral predicament of residents in Northern Ireland. It argues that, unless Member States (MS) act promptly, hundreds of thousands of their citizens, qua Union citizens, stand to be disenfranchised this coming May – a democratic outrage that can and should be averted. Continue reading →
On 22 October 2018, New Europeans and the Federal Trust held the event ‘EU citizenship rights in the shadow of Brexit’. Since that date, the end-game of Brexit has gathered pace. On 14 November, the Draft Withdrawal Agreement and political declaration on the future relationship between the UK and the EU was published. The UK government announced that a ‘meaningful vote’ would be held in the House of Commons on 11 December, before postponing on the eve of the vote leading to the Prime Minister weathering a vote of no confidence by Conservative MPs and the announcement that the vote would be held in the third week of January. Part 2 of this Agreement provides extensive protection for the legal rights of UK nationals in the EU-27 and EU citizens in the UK; however, it may be argued that this ossifies a conception of EU citizenship as one of juridical objectity rather than political self-determination. At the European level, the Court of Justice of the European Union held in its Wightmanjudgment on 10 December that the United Kingdom would be free to unilaterally revoke its notification under Article 50 in accordance with its own constitutional requirements. Continue reading →
All eyes were on the Wightman case in recent days. This may have somewhat overshadowed a second interesting development: On Friday 7 December the Swiss government (the Federal Council) decided to publish the result of its negotiations with the European Union on a Framework Agreement (FA) for their bilateral relationship. Such an agreement would form a sort of governing structure for the most important of the Bilateral Agreements that currently link the EU and Switzerland.
There is a complex political context to the negotiations of this draft agreement that I will deliberately leave aside for the present post (see for a recent overview over Swiss-EU relations here). To put it in a nutshell, since 2008 the EU requests this step from Switzerland, and since 2014 the EU and Switzerland have been negotiating a special agreement to cover the most crucial current and future (market-access oriented) agreements among the Bilateral Agreements currently in force between Switzerland and the EU. The goal is to create a more reliable framework (1) for Switzerland’s incorporation of EU legal acts in the relevant domains, (2) for the uniform interpretation and application of the Agreements and the EU law referenced therein, (3) for the surveillance of the application of those norms and (4) for the settlement of disputes (Article 1 (3) FA). Presently, I want to highlight two elements that seem to be of relevance beyond the confines of Swiss-EU relations: the solution found for the interpretation and dispute settlement of the FA and the law it covers. Continue reading →
On 10 December 2018, the European Court of Justice (ECJ) delivered its judgment in the Wightman case on the revocation of a notification of an intention to withdraw from the EU under Article 50 TEU. Extraordinarily, the expedited process adopted by the CJEU upon the request of the referring Scottish Inner Court of Session has seen a judgment delivered barely three months after the original preliminary reference request was made in the domestic judgment on 21 September 2018. This is a reaction to the time-sensitivity of the political end-game of Brexit. The UK House of Commons had been scheduled to hold its ‘meaningful vote’ on adoption of the Withdrawal Agreement and political declaration on the future relationship on 11 December before the postponement of this vote by the government. This vote provided the factual background to the dispute in the case. The petitioners, including Scottish MPs, sought an answer to the question of whether legally there existed the third option of revocation rather than the dichotomy of either accepting the Withdrawal Agreement or else exiting the EU via the automatic operation of Article 50(3) TEU upon the elapse of the two-year time period on 29 March 2019. The full-court judgment has upheld the Advocate-General’s Opinion of 4 December that a Member State is free to revoke unilaterally a notification of intention to withdraw from the EU made under Article 50(2) TEU. Indeed, the final judgment has recognised a right to revoke that is even more receptive to the sovereign discretion of the withdrawing Member State than in the Opinion. This post will first summarise the judgment, before providing some comments thereupon. The Wightman decision has filled a lacuna in EU law; it remains to be seen whether this legal clarity will help to assuage the political chaos currently engulfing the United Kingdom. Continue reading →
A few days before the vote in the House of Commons on the Withdrawal Agreement, scheduled for December 11th, 2018, the debates are still vivid both in the United Kingdom and the European Union. The possibilities of holding a second referendum or stopping the withdrawal process have been repeatedly raised as alternatives should the Withdrawal Agreement be rejected by the House of Commons.
In this context, the pending case Wightman and others before the Court of Justice of the EU is of crucial importance. After the judgment of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union, which followed the submissions of counsel regarding the irrevocability of a withdrawal notification, the request for a preliminary reference from the Inner House of the Court of Session in Scotland could be a game changer. The Opinion of Advocate General Campos Sánchez-Bordona delivered on December 4th, 2018, invites the Court to rule in favour of the possibility for the UK to unilaterally revoke its notification of withdrawal, potentially opening up a third way. Continue reading →
The question whether it would be lawful for a Member State to revoke the notification of withdrawal from the EU before the two-year lapse (laid down in the third paragraph of Article 50 TEU) has, clearly, vital political, economic and social implications. Even though it cuts to the core of the philosophy governing the “ever closer Union” and the role that States and private individuals play in it, it’s also a matter to which the provision itself does not give a definite answer. Moreover, there is no case law issued on the matter by the CJEU that could contribute to the interpretation of the provision, while the UK Supreme Court seems to have posited the irrevocability of a withdrawal notification in the famous judgment issued in the case of R (Miller) v Secretary of State for Exiting the European Union [UKSC 2016/0196], foregoing the opportunity to use the preliminary reference mechanism. This absence of relevant CJEU case-law is expected to change after the Inner House of the Court of Session in Scotland decided on 21.09.2018 to refer a relevant preliminary question (see O. Garner’s analysis),
Part of the literature expressing interesting and strong legal arguments has suggested the answer to the above question to the positive (e.g. P. Craig, S. Peers, O. Garner, A. Sari). Arguing the contrary and attempting a contribution to the academic debate, this post’s point of view is based on the fundamental principle that the EU legal order constitutes an “autonomous legal system”, which is governed by its own rules enacted by its own institutions and interpreted by its established Court (C-26/62, Van Gend en Loos). It is, therefore, argued that the legal lacuna regarding the provision of revoking the withdrawal notification, leads, according to the interpretation of the provision set out in Article 50 TEU – in line with the letter and spirit thereof – to the conclusion that permitting such a revocation would contradict the principle of autonomy, regardless of whether it is unilateral or initiated upon consensus.
The present post is divided into two parts. In the first part I approach the interpretation of Article 50 TEU through its letter and spirit. In the second part I develop my argumentation concerning the critical role that the fundamental principle of autonomy should play when attempting to find the true meaning of the provision and to fill the legal gap concerning the right to revoke the withdrawal notification. Continue reading →
On the day that Theresa May declared that withdrawal negotiations between the United Kingdom and the European Union have reached an impasse, the Inner House of the Court of Session in Scotland issued a judgment that may pave the road for a third option between no deal and May’s imperilled Chequers deal. The Scottish court decided to refer the following question in a preliminary reference to the Court of Justice of the European Union:
‘Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU’.
The purpose of the reference is to clarify for Members of Parliament whether it would be a legally valid option under Section 13 of the European Union (Withdrawal) Act to withhold a resolution approving any negotiated withdrawal agreement, or lack thereof, and instead vote to revoke notification under Article 50(2).
This post will summarise the reasoning of the Court of Session judgment. It will then engage with the arguments for and against the proposition that notice under Article 50(2) may indeed be revoked unilaterally. The argument will be forwarded that such a unilateral revocation by the United Kingdom should be possible, so long as a decision is made to do so in accordance with the constitutional requirements of the Member State. The post will conclude with consideration of the second limb of the conditions and effects of such a revocation for the Member State remaining within the EU. If unilateral revocation is indeed possible, it will be argued that the most desirable method of creating such a statutory power would be to include it within legislation mandating the holding of a second referendum on the question of whether the United Kingdom should leave or remain within the European Union, and to predicate its operation thereupon. Continue reading →
Last week, the Court handed down a decision on the provisions of the Agreement on the Free Movement of Persons (AFMP) between Switzerland and the EU. It denied that a French national who had moved to Switzerland and who wanted to rely on the AFMP’s freedom of establishment provisions to challenge a French legal mechanism of exit taxation on unrealised capital gains could do so. The case is of interest for those following Swiss-EU relations, as the ECJ had (and missed) the opportunity to say more on the rather specific version of freedom of establishment enshrined in the Agreement. At the same time, there are also certain lessons to be learned for the interpretation of future agreements of the EU with third countries dealing with access to the internal market and the free movement of persons (looking at you, Brexit). Arguably, there is a certain meandering in the reasoning of the Court on the AFMP, and this latest case seems to demonstrate a return to the early days of a more restrictive interpretation, based to a substantial degree on the fact that Switzerland has said no to the internal market. Below, I will briefly explain the facts of Picart and the decision of the Court. Then, I will examine in more depth the above claim on the Court’s shift in interpretive methodology and the alternative approaches to the interpretation of the AFMP that could have been taken. Continue reading →